Liggins v. Holbert et al

Filing 41

MEMORANDUM OPINION. Signed by District Judge Michael F. Urbanski on 4/11/17. (kld)

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
HARRISONBURG DIVISION
KENNETH D. LIGGINS,
Plaintiff,

v.

J. MIKE HOLBERT, et al.,
Defendants.

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Civil Action No. 5:16-CV-00041

By:

Michael F. Urbanski
United States District Judge

MEMORANDUM OPINION
Pro se plaintiff Kenneth D. Liggins brings this action alleging civil rights violations
under 42 U.S.C. §§ 1983 and 1985(3). He names as defendants J. Mike Holbert, Chairman of
the Clarke County Board of Supervisors; Keith R. Dalton, Town Manager for the Town of
Berryville; the Clarke County Board of Supervisors; and the Town ofBerryville (collectively,
"defendants"). ECF No. 1, at 1. Defendants brought a motion to dismiss Liggins's
Complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). ECF No.5. In
response, Liggins brought two motions for default judgment and a related motion for
hearing. ECF Nos. 9, 10, 12. These motions were referred to United States Magistrate Judge
Joel C. Hoppe for report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B). 1

Liggins has also flled two motions that appear to be-and will be construed by the court as-briefs in
opposition or other pleadings. These are:
• "Plaintiff Motion to Dismiss Defendants Opposition to Plaintiff Motion for Default Judgment"
(ECF No. 16). The court will construe this as a brief in opposition to defendants' brief in opposition (ECF
No. 11) to Liggins's first motion for default judgment (ECF No.9).
• "Plaintiff Motion to Dismiss the Honorable Joel C. Hoppe United States Magistrate Judge 2nd
Report and Recommendation to Grant Defendants Motion to Dismiss" (ECF No. 34). The court will
construe this as objections to Judge Hoppe's second report and recommendation (ECF No. 33).
1

In his Erst report and recommendation, issued on October 26, 2016,Judge Hoppe
addressed Liggins's claim that defendants did not timely serve him with their motion to
dismiss, flled on September 30, 2016. ECF No. 15, at 1-2. Judge Hoppe recommended
denying Liggins's motions for default judgment and for a hearing on two grounds. First, the
Clerk of the Court had not yet entered defendants' default. Id. at 2. Second, defendants'
motion to dismiss was timely flled and, "based on the affidavits of counsel for Defendants, it
appears that they took reasonable and customary steps to effect service of the motion to
dismiss and brief in support on Liggins." Id. at 3. Liggins flled timely objections to the
report and recommendation on November 7, 2016. ECF No. 17.2
In his second report and recommendation, issued on February 8, 2017,Judge Hoppe
recommended granting defendants' motion to dismiss. ECF No. 33, at 12. Judge Hoppe
found that Liggins failed to state a claim for which relief can be granted, and accordingly
recommended that his complaint be dismissed pursuant to Federal Rule of Civil Procedure
12(b)(6). 3 Liggins flied timely objections to the report and recommendation on February 27,
2017. 4 ECF No. 34. Subsequently, Liggins flled a motion requesting a hearing regarding his
objections to Judge Hoppe's reports and recommendations (ECF No. 36).
For the reasons set forth below, the court will ADOPT both reports and
recommendations to the extent consistent with this opinion (ECF Nos. 15, 33), GRANT

Liggins also filed objections to Judge Hoppe's first report and recommendation on February 27, 2017. ECF
No. 35. However, as these objections were made well past ):he fourteen-day deadline provided by 28 U.S.C. §
636, and merely reiterate arguments Liggins made in his earlier, timely filing (ECF No. 17), the court will
decline to consider these objections for the purposes of this memorandum opinion and accompanying order.
3 Judge Hoppe did not address whether Liggins lacked standing to bring this action, an argument made by
defendants in the memorandum accompanying their motion to dismiss. See ECF No.6, at 7-8.
4 Although parties ordinarily have only fourteen days from the time of a report and recommendation to file
objections to it, Judge Hoppe set February 27, 2017 as the deadline for Liggins's objections.

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defendants' motion to dismiss (ECF No.5), and DENY Liggins's motions (ECF Nos. 9, 10,
12, 36). The court will address Liggins's motions before addressing defendants' motion to
dismiss.

I.
Rule 72(b) of the Federal Rules of Civil Procedure permits a party to "serve and file
specific, written objections" to a magistrate judge's proposed findings and recommendations
within fourteen days of being served with a copy of the report. See also 28 U.S.C. §
636(b)(1). The Fourth Circuit has held that an objecting party must do so "with sufficient
specificity so as reasonably to alert the district court of the true ground for the objection."
United States v. Midgette, 478 F.3d 616, 622 (4th Cit. 2007), cert denied, 127 S. Ct. 3032
(2007).
To conclude otherwise would defeat the purpose of requiring
objections. We would be permitting a party to appeal any issue
that was before the magistrate judge, regardless of the nature
and scope of objections made to the magistrate· judge's report.
_Either the district court would then have to review every issue
in
the
magistrate
judge's
proposed
findings
and
recommendations or courts of appeals would be required to
review issues that the district court never considered. In either
case, judicial resources would be wasted and the district court's
effectiveness based on help from magistrate judges would be
undermined.
Id. The district court must determine de novo any portion of the magistrate judge's report
and recommendation to which a proper objection has been made. "The district court may
accept, reject, or modify the recommended disposition; receive further evidence; or return
the matter to the magistrate judge with instructions." Fed. R. Civ. P. 72(b)(3); accord 28
U.S.C. § 636(b)(1). "General objections that merely reiterate arguments presented to the

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magistrate judge lack the specificity required under Rule 72, and have the same effect as a
failure to object, or as a waiver of such objection." Moon v. BWX Techs., Inc., 742 F. Supp.
2d 827, 829 (W.D. Va. 2010) (citing Veney v. Astrue, 539 F. Supp. 2d 841, 845 (W.D. Va.
2008)), aff'd, 498 F. App'x 268 (4th Cir. 2012); see also Thomas v. Arn, 474 U.S. 140, 154
(1985(3)) ("[T]he statute does not require the judge to review an issue de novo if no
objections are filed.'').
Further, objections that only repeat arguments raised before the magistrate judge are
considered general objections to the entirety of the report and recommendation. See Veney,
539 F. Supp. 2d at 845. As the court noted in Veney:
Allowing a litigant to obtain de novo review of her entire case
by merely reformatting an earlier brief as an objection "mak[es]
the initial reference to the magistrate useless. The functions of
the district court are effectively duplicated as both the
magistrate and the district court perform identical tasks. This
duplication of time and effort wastes judicial resources rather
than saving them, and runs contrary to the purposes of the
Magistrates Act." Howard [v. Sec'y of Health & Human Servs.J,
932 F.2d [505], 509 [(6th Cir. 1991)].
539 F. Supp. 2d at 846. A plaintiff who reiterates his previously raised arguments will not be
given "the second bite at the apple []he seeks." Id. Instead, his re-fi.led brief will be treated
as a general objection, which has the same effect as a failure to object. Id.

II.
Under Rule 12(a)(1)(A)(ii) of the Federal Rules of Civil procedure, a defendant must
serve an answer within twenty-one days of being served with the plaintiff's complaint The
answer is served on a person by "mailing it to the person's last known address-in which
event service is complete upon mailing." Fed. R. Civ. P. 5. ''When a party against whom a

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judgment for affumative relief is sought has failed to plead or otherwise defend, and that
failure is shown by affidavit or otherwise, the clerk must enter the party's default." Fed. R
Civ. P. 55(a). Once the clerk enters the party's default, and unless "the plaintiff's claim is for
a sum certain or a sum that can be made certain by computation," the other party "must
apply to the court for a default judgment." Fed. R. Civ. P. 55(b).
However, "[p]rior to obtaining a default judgment under either Rule 55(b)(1) or Rule
55(b)(2), there must be an entry of default as provided by Rule 55(a).'_' 10A Charles Allen
Wright et al., Federal Practice and Procedure§ 2682 (4th ed. 2016); see ECF No. 15, at 2.
Federal courts have recognized that "the clear weight of authority holds that a party must
seek entry of default by the clerk before it can move the court for default judgment." Rowley
v. Morant, 276 F.R.D. 669, 670 (D.N.M. 2011); accord Tweedy v. RCAM Title Loans, LLC,
611 F. Supp. 2d 603, 605 (W.D. Va. 2009) ("After the entry of default, the non-defaulting
party may move the court for 'default judgment' under Federal Rule of Civil Procedure
55(b)." (emphasis added)).

III.
Liggins filed two motions for default judgment (each containing the same allegations),
ECF Nos. 9, 12, and a motion for hearing on the motions for default judgment, ECF No.
10. "Liggins contends that the Defendants did not timely serve on him their motion to
dismiss .... Liggins then asserts that Defendants are in default, and default judgment should
be entered against them." ECF No. 15, at 2. Judge Hoppe disagreed, and found that
defendants are not in default and recommended that the court deny Liggins's motions

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accordingly. Id. at 3. Finally, because the motions could be decided based on the parties'
filings, Judge Hoppe concluded that a hearing was not necessary. Id.
Liggins objects to Judge Hoppe's report and recommendation, but largely reiterates
the arguments he previously made to the magistrate judge. See generally ECF Nos. 9, 12, 17.
Those objections that fail to identify specific errors in the report and recommendation are
properly construed as general objections that do not warrant de novo review. See Veney, 539
F. Supp. 2d at 844-46. Liggins also concedes that he ultimately received defendants' motion
to dismiss, though maintains that this copy, received October 27,2016, was the only copy he
received. ECF No. 17, at 2.
His objections may not be entirely disregarded, however. Construing Liggins's
objections liberally, he raises several new, specific objections to Judge Hoppe's findings that
the court must consider: (1) that his motion is not premature; (2) that even if defendants
took reasonable steps to effect service of the motion to dismiss on him, they can
nevertheless be held in default; and (3) that he has been prejudiced because "the Court is
acting as UJegal [c]ounsel on behalf of the Defendants and it's [sic] counsel." ECF No. 17, at
5. The court will address each in turn.
Judge Hoppe found Liggins's motions to be premature because the clerk had not yet
entered default against defendants. ECF No. 15, at 2. Ordinarily, a motion for default
judgment must come after the entry of default. See Tweedy, 611 F. Supp. 2d at 605. But a
plaintiff proceeding pro se is held to "less stringent standards" than plaintiffs with counsel,
and the court must construe his claims liberally. Erickson v. Pardus, 551 U.S. 89, 94 (2007).
In the Second Circuit, "courts have excused the failure to obtain entry of default prior to an
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application for default judgment, and have instead included an order for entry of default
with a decision on the merits of the application for default judgment." In re Suprema
Specialties, Inc., 330 B.R. 40, 47 (S.D.N.Y. 2005). Suprema Specialties comports with the less
stringent standards the Fourth Circuit affords plaintiffs proceeding pro se. With these
principles in mind, it is reasonable to read Liggins's motions for default judgment as
requesting the clerk to enter defendants' default.
Nevertheless, Liggins's motions for default judgment must fail because, contrary to
his contention, defense counsel does not have "the sole responsibility to make sure that the
plaintiffLiggins had received a copy of their motion to dismiss." ECF No. 17, at 5. There
are two requirements for entry of default under Rule 55 of the Federal Rules of Civil
Procedure: (1) that the party "has failed to plead or otherwise defend"; and (2) "that failure is
shown by affidavit or otherwise." Liggins attempts to show defendants' failure to plead by
submitting an affidavit attesting that he had not received defendants' motion to dismiss
before the filing deadline. Even if true, defendants pled properly by filing their motion to
dismiss within the deadline and "mailing it to [Liggins's] last known address-in which event
service is complete upon mailing." Fed. R. Civ. P. 5; see ECF No. 11 (providing affidavits of
defense counsel and members of defense counsel's law firm attesting that the motion to
dismiss was properly mailed to Liggins). Liggins's motions for default judgment cannot be
granted simply because Liggins contends, without more, that he never received filings which
he was entitled to receive by a particular date.
Liggins has not made the requisite showing under Rule 55 of the Federal Rules of
Civil Procedure to warrant entry of default or default judgment. The court therefore need

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not address Liggins's argument that he has been prejudiced by his failure to receive a copy of
defendants' motion to dismiss. 5 Accordingly, the court will DENY Liggins's two motions
for default judgment and related motion for hearing, ECF Nos. 9, 10, 12.

IV.
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) challenges a
court's subject matter jurisdiction. Absent subject matter jurisdiction, a court must dismiss
the action. Evans v. B.F. Perkins Co., a Div. of Standex Int'l Corp., 166 F.3d 642, 653 (4th
Cir. 1999). Whether a plaintiff has standing to bring a cause of action "is generally associated
with Civil Procedure Rule 12(b)(1) pertaining to subject matter jurisdiction." CGM, LLC v.
BellSouth Telecomms., Inc., 664 F.3d 46, 52 (4th Cir. 2011). "That is because 'Article III
gives federal courts jurisdiction only over cases and controversies,' and standing is 'an
integral component of the case or controversy requirement."' Id. (quoting Miller v. Btown,
462 F.3d 312, 316 (4th Cir.2006)). When a defendant raises substantive challenges to a
court's jurisdiction under Rule 12(b)(1), the court need not accept the complaint's allegations
as true and may consider facts outside the complaint to determine if it can properly exercise
subject matter jurisdiction. Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009). At all
times, "[t]he plaintiff has the burden of proving that subject matter jurisdiction exists."
Evans, 166 F.3d at 647.

s As Judge Hoppe noted, Liggins received an extension to f1le his opposition. ECF No. 15, at 3. Thus, in any
event, Liggins has suffered no harm related to not receiving defendants' motion to dismiss. Moreover, the
court did not "actO as ~]egal [c]ounsel on behalf of the [d]efendants," ECF No. 17, at 5, by mailing Liggins a
copy of defendants' motion to dismiss. Rather, the motion was mailed to Liggins so that he would be able to
f1le a response; in other words, to mitigate any prejudice inflicted on Liggins by virtue of his purported failure
to receive the motion earlier.

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In contrast, to survive a motion to dismiss under Federal Rule of Civil Procedure
12(b)(6), a complaint need only contain sufficient factual matter which, if accepted as true,
"state[s] a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint is
"facially plausible" when the facts alleged "allowO the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged." Id. This "standard is not akin to a
'probability requirement,' but it asks for more than a sheer possibility that a defendant has
acted unlawfully." Id. When ruling on a motion to dismiss, the court must "accept the wellpled allegations of the complaint as true" and "construe the facts and reasonable inferences
derived therefrom in the light most favorable to the plaintiff." Ibarra v. United States, 120
F.3d 472,474 (4th Cir. 1997).
While the court must accept as true all well-pled factual allegations, the same is not
true for legal conclusions. "Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice." Iqbal,_ 556 U.S. at 678; see also
Wag More Dogs, LLC v. Cozart, 680 F.3d 359, 365 (4th Cir. 2012) ("Although we are
constrained to take the facts in the light most favorable to the plaintiff, we need not accept
legal conclusions couched as facts or unwarranted inferences, unreasonable conclusions, or
arguments." (internal quotation marks omitted)). A plaintiff proceeding pro se is held to
"less stringent standards" than counseled plaintiffs, and the court must construe his claims
liberally. Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, the court need not ignore a
clear failure to allege facts that set forth a cognizable claim. Weller v. Dep't of Soc. Servs. for
Baltimore, 901 F.2d 387, 391 (4th Cir. 1990). Nor is a court required to recognize "obscure

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or extravagant claims defying the most concerted efforts to unravel them." Beaudett v. City
of Hampton, 775 F.2d 1274,1277 (4th Cir. 1985), cert. denied, 475 U.S. 1088 (1986).

v.
Defendants filed a motion to dismiss Liggins's complaint pursuant to Federal Rules
of Civil Procedure 12(b)(1) and 12(b)(6). ECF Nos. 5, 6. Defendants first argue that Liggins
complaint does not state a claim for which relief under §§ 1983 and 1985(3) may be granted,
because "Liggins has failed to plead any deprivation of right secured by either the
Constitution or a federal statute." ECF No.6, at 6-7. Defendants then argue that Liggins
lacks standing because he has "suffered no injury or damages," ECF No.6, at 7-8, and
accordingly the court lacks jurisdiction to hear his case. .
On February 8, 2017,Judge Hoppe recommended granting defendants' motion to
dismiss, on the basis that Liggins failed to state a claim for which relief can be granted. ECF
No. 33, at 12. Presumably because he found dismissal warranted under Rule 12(b)(6), Judge
Hoppe did not consider defendants' arguments regarding Rule 12(b)(1). The court will
analyze defendants' motion to dismiss under each rule in turn.

A.
When ruling on a Rule 12(b)(6) motion to dismiss, the court must "accept the wellpled allegations of the complaint as true" and "construe the facts and reasonable inferences
derived therefrom in the light most favorable to the plaintiff." Ibarra, 120 F.3d at 474. In
light of Liggins's status as a pro se plaintiff, the court will "consider both the complaint and
the factual allegations in [Liggins's] response to the motion to dismiss in determining
whether his claims can survive dismissal." Shomo v. Apple, Inc., No. 7:14cv40, 2015 WL
10

777620, at *2 (W.D. Va. Feb. 24, 2015). The court will also consider factual allegations raised
or further developed in Liggins's various pleadings (such as his objections to Judge Hoppe's
report and recommendation), again in light of the fact that Liggins is a pro se plaintiff.
Liggins alleges that he was elected president of the Josephine Improvement
Association ('jiA"), which represents the interests of a community within Clark County and
the town of Berryville called Josephine City. ECF No. 33, at 2. Clark County had acquired
grant money which was to be used to study the possibility of applying for a larger,
$1,000,000 grant-which would actually come in the form of a loan-to fund improvements
to Josephine City. Id. at 3. According to Liggins, the named defendants-Mike]. Holbert, a
member of the Clarke County Board of Supervisors, and Keith R. Dalton, the Town
Manager of the Town of Berryville-refused to release the grant money unless Liggins
resigned as president of the JIA. Id. Their purported rationale was that they wanted to take
advantage of the predominately elderly community of Josephine City and obtain citizens'
signatures on deeds of trust for their homes, thereby obtaining ownership of the homes
upon their owners' death; Liggins, had he remained president of the JIA, would have
disrupted this alleged scheme. Id. at 3-4. It should also be noted that Liggins has "sued
Berryville and Dalton in the past for what he described as the Town's illegal annexation of
Josephine City." Id. at 2.
Liggins gave in to defendants' alleged demands and resigned as president, though he
apparently continued to attend JIA meetings and was ultimately reelected president of the
JIA, a title he currently maintains. Id. at 3-4. Liggins's claimed injury is that, had he not been
ousted as president of the JIA, he would have been able to obtain the grant funds and a new
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city charter for Josephine City, which would have enabled him receive various contracts for
his businesses to improve Josephine City's infrastructure. I d. at 4. In any event, the
$1,000,000 grant to fund improvements in Josephine City never came through; the residents
of Berryville themselves decided to abandon the grant applications. Id.
Liggins brings his claim against defendants under 42 U.S. C. §§ 1983 and 1985(3), but
"one cannot go into court and claim a 'violation of§ 1983'-for § 1983 by itself does not
protect anyone against anything." Chapman v. Houston Welfare Rights Org., 441 U.S. 600,
617 (1979). The same holds true for§ 1985(3). See United Bhd. Of Carpenters &Joiners of
Am., Local610 v. Scott, 463 U.S. 825, 833 (1983). Liggins argues that he may maintain a suit
under §§ 1983 and 1985(3) because defendants violated his constitutional rights in essentially
three respects: First, defendants violated his First Amendment rights by limiting his freedom
of association and retaliating against him for petitioning his local government on behalf of
Josephine City. See ECF No. 20, at 13; ECF No. 33, at 6; ECF No. 34, at 1. Second,
defendants violated his due process rights under the Fifth and Fourteenth Amendments, by
depriving him of his "liberty interest" in serving as president of the JIA. See ECF No. 20, at
2; ECF No. 33, at 6; ECF No. 34, at 2. Finally, defendants violated his equal protection
rights by discriminating against him on racial grounds. ECF No. 34, at 2. Liggins did not
raise this third argument in his original complaint; it appears that the first time he specifically
raised it was in his objection to Judge Hoppe's second report and recommendation. ECF
No. 34. Indeed, Judge Hoppe noted that, With respect to Liggins's Fourteenth Amendment
claim, "[i]t is not clear whether Liggins alleges a violation of Due Process, Equal Protection,
or both." ECF No. 33, at 6 n.6.
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Judge Hoppe considered Liggins's arguments as to his First Amendment retaliation
claim and Fifth/Fourteenth Amendment due process claims, and found both to be without
merit Id. On that basis, Judge Hoppe recommended that the court grant defendants' motion
to dismiss. Id. at 12. As to these issues, Liggins's objections to Judge Hoppe's report and
recommendation simply reiterate the arguments he made previously. See generally ECF No.
34. For instance, Judge Hoppe appropriately found that Liggins has no "liberty interest"
under either the Fifth or Fourteenth Amendments in being president of the JIA. See ECF
No. 33, at 7 ("Liggins, however, simply has no established Constitutional or statutory right
to serve as the head of a private, voluntary organization. He points to no cases or statutes
establishing such a right, and the Court has been unable to find any."). Yet in his objections,
Liggins repeatedly-and without further clarification-references the Fifth Amendment and
his "right to serve as the President of JIA." ECF No. 34, at 1-3, 5. Again, Liggins fails to
identify specific errors in the report and recommendation; these general objections do not
warrant de novo review. See Veney, 539 F. Supp. 2d at 844-46. Although Liggins's
remaining objections are disjointed, under the liberal construction owed to prose plaintiffs
there are two arguments Liggins makes in his objections to Judge Hoppe's report and
recommendation that could reasonably be construed as specific objections. These are his
claims that defendants' conduct violated his First Amendment freedom of association right,
see id. at 1-2, and Fourteenth Amendment equal protection rights, see id. at 1-2, 6, 9-13.
These arguments, however, are equally meritless.
Liggins contends that when defendants demanded his resignation as president of the
JIA, they "deprive[d him] of his [First] Amendment Right to associate as the President of the
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JIA, Inc." ECF No. 34, at 3. "The First Amendment right to freedom of association is
protectable in§ 1983 actions." White v. Town of Chapel Hill, 899 F. Supp. 1428, 1433
(M.D.N.C. 1995), aff'd, 70 F.3d 1264 (4th Cir. 1995). Relevant to Liggins's claim, freedom of
association particularly protects the "'right to associate for the purpose of engaging in those
activities protected by the First Amendment-speech, assembly, petition for the redress of
grievances, and the exercise of religion."' Id. (quoting Roberts v. U.S. Jaycees, 468 U.S. 609,
618 (1984)). Liggins, however, has failed to explain how defendants have deprived him of his
right to associate. Accepting his allegations as true, for the brief period of time during which
he was not president of the JIA, Liggins nevertheless could-and did-associate with the
JIA as a member. See ECF No. 33, at 3-4 (noting that "Liggins ostensibly remained aJIA
member, albeit not in the capacity of president," attended meetings, and was eventually
reelected president). The court has found no cases that stand for the proposition that the
First Amendment's guarantee of freedom of association protects the right to associate while
holding a particular position, including that of president of a non-profit, community
organization such as the JIA. It is therefore unsurprising that Liggins does not cite to any
caselaw in support of his First Amendment freedom of association claim. Liggins's claim
that defendants violated his First Amendment freedom of association rights is without merit.
Liggins also contends that defendants conspired to obtain and demanded his
resignation, in part, because of his race. Parsing the factual allegations that Liggins essentially
raises for the first time in his objections to Judge Hoppe's report and recommendation, ECF
No. 34, Liggins's argument is that defendants refused to do business with the JIA while he
was president of the JIA because of his race; that "[e]very other community who [has] a
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white leader for their No[t]-for-profit corporation [is] being treated differently than Liggins";
and that this discriminatory treatment stems from a history of racial animosity between the
town of Berryville and the community of Josephine City-which, according to Liggins,
Berryville illegally annexed. ECF No. 34, at 9-13.
"To succeed on an equal protection claim, a plaintiff must first demonstrate that he
has been treated differently from others with whom he is similarly situated and that the
unequal treatment was the result of intentional or purposeful discrimination." Morrison v.
Garraghty, 239 F.3d 648, 654 (4th Cir. 2001). Liggins has demonstrated neither. Although
Liggins claims that he is being treated differently from others similarly situated (i.e., leaders
of other not-for-profit, community associations), he does not, for example, point to any
specific instances of defendants treating those others differently, nor to defendants
discriminating against any other leaders of not-for-profit, community associations (or
businesspeople in general) on the basis of race. Cf. Monroe v. City of Charlottesville, 471 F.
Supp. 2d 657 (2007) (denying motion to dismiss a claim that municipal policy specifically
targeted black individuals). Liggins's allegations are thus little more than "[t]hreadbare
recitals of the elements of a cause of action, supported by mere conclusory statements," for
a violation of his equal protection rights. Iqbal, 556 U.S. at 678. The court need not accept
such "unwarranted inferences" or "unreasonable conclusions." Cozart, 680 F.3d at 365.
Moreover, there is nothing in Liggins's complaint or pleadings that suggest
defendants intentionally or purposefully discriminated against Liggins on account of his race;
he merely recites the facts that Liggins is black and Holbert and Dalton are white. Indeed,
the entire thrust of Liggins's theory of the case undercuts that idea because he alleges that
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defendants conspired to oust him as president of the JIA as part of an elaborate scheme to
defraud the citizens of Josephine City of their homes-not that defendants sought to
remove Liggins as president of the JIA because of his race.
"Simply stated, the complaint contains no factual content, which, accepted as true,
would state a plausible freedom of association ... or equal protection claim." Liggins v.
Clarke Cty. Sch. Bd., No. CIV.A. 5:09CV00077, 2010 WL 364366, at *3 (W.D. Va. Jan. 29,
2010) (citing Twombly, 550 U.S. at 555). Accordingly, Liggins's complaint cannot survive the
Rule 12(b)(6) motion to dismiss.

B.
"Article III gives federal courts jurisdiction only over cases and controversies," and
standing is "an integral component of the case or controversy requirement."' Miller v.
Brown, 462 F.3d 312, 316 (4th Cir.2006). There are three "irreducible minimum
requirements" of Article III standing:
(1) an injury-in-fact (i.e., a concrete and particularized invasion
of a legally protected interest); (2) causation (i.e., a fairly
traceable connection between the alleged injury in fact and the
alleged conduct of the defendant); and (3) redressability (i.e., it
is likely and not merely speculative that the plaintiffs injury will
be remedied by the relief plaintiff seeks in bringing suit).
Beck v. McDonald, 848 F.3d 262,269 (4th Cir. 2017) (quoting David v. Alphin, 704 F.3d
327, 333 (4th Cir. 2013)).
Defendants argue that Liggins fail to meet the first of these requirements because
Liggins has pleaded no actual or imminent injury to himself. The court must agree. As
discussed above, Liggins has not identified any right of his, whether under the Constitution
or federal law, violated by defendants. Liggins's other alleged injury is that, had defendants
16

not manipulated him into resigning as president of the JIA (as he alleges), he would have
been able to obtain the grant funds and obtain a new city charter for Josephine City, which
would have enabled him receive various contracts for his businesses to improve Josephine
City's infrastructure. This alleged injury, however, is "too remote and speculative to
constitute an injury in fact." Greengael, LC v. Bd. of Supervisors of Culpeper Cty., 313 F.
App'x 577, 581 (4th Cir. 2008). Accordingly; Liggins's complaint must be dismissed pursuant
to Rule 12(b)(1) in addition to Rule 12(b)(6).

c.
Because the court finds dismissal of Liggins's complaint under both Rule 12(b)(1) and
Rule 12(b)(6) warranted, the court will GRANT defendants' motion to dismiss (ECF No.5).
All claims against defendants are DISMISSED with prejudice.

VI.
Liggins's final motion requests a hearing on his objections to Judge Hoppe's reports
and recommendations. ECF No. 36. Rule 72(b) of the Federal Rules of Civil Procedure
permits a party to "serve and flle specific, written objections" to a magistrate judge's
proposed f1ndings and recommendations. In addition, the rule provides: "The district judge
must determine de novo any part of the magistrate judge's disposition that has been properly
objected to. The district judge may accept, reject, or modify the recommended disposition;
receive further evidence; or return the matter to the magistrate judge with instructions." Fed.
R. Civ. P. 72(b)(3). Because the motion to dismiss can be decided based on the parties'
filings, the court concludes that a hearing is not necessary.

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VII.
For the reasons stated above, the court takes the following action:
1. The court construes "Plaintiff Motion to Dismiss Defendants Opposition to
Plaintiff Motion for Default Judgment" (ECF No. 16) as a brief in opposition
to defendants' brief in opposition (ECF No. 11) to Liggins's first motion for
default judgment (ECF No.9).
2. The court construes "Plaintiff Motion to Dismiss the Honorable Joel C.
Hoppe United States Magistrate Judge 2nd Report and Recommendation to
Grant Defendants Motion to Dismiss" (ECF No. 34) as objections to Judge
Hoppe's second report and recommendation (ECF No. 33).
3. The court ADOPTS the first report and recommendation (ECF No. 15) to
the extent consistent with this opinion.
4. The court ADOPTS the second report and recommendation (ECF No. 33) to

the extent consistent with this opinion.
5. The court GRANTS defendants' motion to dismiss (ECF No.5). All claims
against defendants are DISMISSED with prejudice.
6. The court DENIES Liggins's first motion for default judgment (ECF No. 9).
7. The court DENIES Liggins's motion for hearing regarding his first motion

for default judgment (ECF No. 10).
8. The court DENIES Liggins's second motion for default judgment (ECF No.

12).

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9. The

co~t

DENIES Liggins's motion for hearing regarding his objections to

Judge Hoppe's reports and recommendations (ECF No. 36).
An appropriate Order will be entered-this day.

Entered:
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10 ~17

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Michael F. Urbanski
United States DistrictJudge

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